Fordham Law Faculty Colloquium PapersCopyright (c) 2014 NELLCO All rights reserved.http://lsr.nellco.org/fordham_fc
Recent documents in Fordham Law Faculty Colloquium Papersen-usWed, 03 Sep 2014 15:49:04 PDT3600Institutional Coordination and Sentencing Reformhttp://lsr.nellco.org/fordham_fc/19
http://lsr.nellco.org/fordham_fc/19Wed, 05 Apr 2006 14:30:51 PDT
Generally, treatments of prosecutorial discretion in the sentencing context tend to focus on its challenge to horizontal equity and judicial discretion within sentencing regimes. The goal in this symposium piece is to reverse the arrow, and, using an internal executive perspective, start looking at how sentencing regimes and judicial enforcement of those regimes can be used as tools for the hierarchical control of line prosecutors. It first considers a problem arising out of ostensibly successful regulation within a prosecutor’s offices - in this case, an effort to control plea bargaining in New Orleans. It then considers issues relating to regulation from outside the office, to see how judicial supervision of plea bargaining through factually intensive sentencing inquiries can reflect (and perhaps occur because of) the interest of a centralized prosecutorial authority in controlling its own minions.
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Daniel RichmanAdministrative LawCriminal Law and ProcedureHANDLING THE FAILURE OF A GOVERNMENT-SPONSORED ENTERPRISEhttp://lsr.nellco.org/fordham_fc/18
http://lsr.nellco.org/fordham_fc/18Wed, 05 Apr 2006 14:30:50 PDT
Fannie Mae and Freddie Mac are huge, fast-growing, highly leveraged, lightly regulated, and susceptible to failure. Prudence calls for having a legal mechanism adequate for handling their failure. Yet no adequate insolvency mechanism currently exists for Fannie Mae and Freddie Mac. Unlike ordinary business firms, these government-sponsored enterprises (GSEs) cannot liquidate or reorganize under the Bankruptcy Code. If Fannie Mae or Freddie Mac became sufficiently troubled, its regulator could appoint a conservator to take control of the firm and attempt to restore its financial health. But by then the firm’s problems could well have become too severe for the conservator to resolve. The conservatorship statute provides no means for effectuating a reorganization and does not expressly authorize a liquidation. Uncertainty about the priority and process for handling creditors’ claims could worsen the firm’s problems and increase the risk of disrupting financial markets and eliciting a costly congressional rescue.

By enacting a workable insolvency mechanism, Congress could avoid using public money or credit to rescue a troubled GSE’s creditors. Congress should specify priorities among creditors’ claims, authorize appointment of a receiver, and empower the receiver to reorganize the GSE or establish an interim firm to carry on the GSE’s business. Alternatively, Congress could allow GSEs to liquidate or reorganize under the Bankruptcy Code.

In the past decade, increasing numbers of lawyers have been turning to religion to find meaning in their work. This article traces the history and development of the “religious lawyering movement,” and how it challenges professional images of lawyers as neutral and fungible, or as “hired guns” in the adversarial system. It then discusses how the religious lawyering movement might respond to three common objections: that religion adds nothing to already commonly recognized secular values; that religious lawyers will unfairly impose their views on clients; and that religious approaches to lawyering are dangerous for democracy.

The article proposes an approach to legal practice that both encourages lawyers to draw on the substantive critiques and contributions of their religious traditions, and respects the basic values of liberal democracy. It invites the legal profession to allow room for lawyers to integrate religious values into their professional lives, so that, as Martin Luther King might put it, “the host of heaven and earth might pause to say, here lived great lawyers who did their job well.

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Russell G. Pearce et al.Constitutional LawJurisprudenceLaw and SocietyProfessional EthicsWhite Lawyering: Rethinking Race, Lawyer Identity, and Rule of Lawhttp://lsr.nellco.org/fordham_fc/15
http://lsr.nellco.org/fordham_fc/15Wed, 05 Apr 2006 14:30:48 PDT
Critical race theory challenges the idea of neutrality with regard to race. In contrast, professionalism requires that lawyers "bleach out" their racial identity. For white lawyers like myself, our tendency to view our white identity as neutral reinforces the approach of professionalism and leads us to see racial issues as belonging to people of color. This essay explores what would happen if we acknowledge whiteness as a particular racial identity that shapes how we perceive ourselves and how others perceive us. Recent research in the field of organizational behavior indicates that businesses employing racially conscious integration-and-learning approaches are more successful in promoting their objectives than those applying racially neutral paradigms. Applying these findings in the context of the legal profession, the Essay concludes that replacing the neutrality of professionalism with a racially conscious approach will promote more effective representation of clients and more equal justice under law.
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Russell G. PearceConstitutional LawHuman Rights LawJurisprudenceLaw and SocietyLegal ProfessionProfessional EthicsRedressing Inequality in the Market for Justice: Why Access to Lawyers Will Never Solve the Problem and Why Rethinking the Role of Judges Will Helphttp://lsr.nellco.org/fordham_fc/16
http://lsr.nellco.org/fordham_fc/16Wed, 05 Apr 2006 14:30:48 PDT
Commentators have argued that the solution to addressing unequal justice under law lies in increased government funding for legal services for the poor and increased pro bono hours from private lawyers. While these proposals could result in providing more lawyers for more low income people, they fail to account for the pervasive inequality resulting from the distribution of legal services primarily through the market. Given the influence of market distribution of legal services on legal outcomes, government-funded legal services and pro bono assistance can provide a valuable form of charity, but not an effective means of equalizing justice. The Essay instead suggests that a more effective way to enhance equal justice under law would be to rethink the proper role of the judge and make the judge an “active umpire” responsible for the quality of justice.
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Russell G. PearceConstitutional LawHuman Rights LawJurisprudenceLaw and EconomicsLaw and SocietyProfessional EthicsJudicial Review before Marburyhttp://lsr.nellco.org/fordham_fc/13
http://lsr.nellco.org/fordham_fc/13Wed, 03 Aug 2005 10:57:57 PDT
While scholars have long probed the original understanding of judicial review and the early judicial review case law, this Article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), this Article shows that it was far more common than previously recognized: there are more than five times as many cases from the Early Republic as the leading historical account found. The Article further shows that all of the cases in which statutes were invalidated fell into three categories: courts invalidated statutes that affected the powers of courts or juries, and they did so even when the legislation could plausibly be squared with constitutional text and prior practice; state courts invalidated state statutes for inconsistency with the federal constitution; and federal courts invalidated state statutes, and, again, they did so even when the statutes could plausibly be defended as constitutional. Scholars have missed this structural pattern, and the dominant view has been that only clearly unconstitutional statutes were invalidated. The Article shows, instead, that the early case law reflects a structural approach to judicial review in which the level of scrutiny was closely linked to the nature of the challenged statute and that courts aggressively protected their power, the power of juries, and the power of the national government.
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William Michael TreanorConstitutional LawLegal HistoryLegislationThe Story of United States v. Salerno: The Constitutionality http://lsr.nellco.org/fordham_fc/12
http://lsr.nellco.org/fordham_fc/12Thu, 23 Jun 2005 14:28:29 PDT
Is it constitutional for the government to lock up people without waiting to convict them at trial? If it is, what are the limits on the government’s power to lock up anyone it deems dangerous? These are issues raised by preventive detention provisions in bail statutes, and addressed in United States v. Salerno. The controversy about these bail statutes, once so hotly contested, has died down. But the broader questions about the government’s power to detain suspected criminals without giving them the benefit of full criminal process remain unresolved, and have taken on a new urgency as the nation confronts the threat of more terrorist attacks. This essay, intended as a chapter in the Criminal Procedure Stories volume, explores the story of Salerno and of the doctrinal analysis that emerged from it.
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Daniel C. RichmanConstitutional LawCriminal Law and ProcedureLaw Enforcement and CorrectionsLegislationPublic Law and Legal TheoryThe Future of Violent Crime Federalismhttp://lsr.nellco.org/fordham_fc/11
http://lsr.nellco.org/fordham_fc/11Thu, 23 Jun 2005 14:28:26 PDT
The goal of this article is to show intergovernmental relations at a crossroads. For two decades, the net costs of the federal interaction with state and local governments in the criminal area were absorbed nationally, with the benefits felt locally. Now, the federal commitment to terrorism prevention, and the role federal authorities envision state and local agencies playing in this endeavor demand certain sacrifices and offer uncertain rewards. Precisely where we will go from here remains to be seen, but this, somewhat impressionistic essay is an attempt look back to where we have been and to chart the course we seem to be on.
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Daniel C. RichmanAdministrative LawConstitutional LawCriminal Law and ProcedurePublic Law and Legal TheoryProperty as Entrancehttp://lsr.nellco.org/fordham_fc/10
http://lsr.nellco.org/fordham_fc/10Wed, 22 Jun 2005 09:55:15 PDT
One of the central values of private ownership in liberal property thought is its freedom-guaranteeing function. The precise mechanism by which private property rights accomplish this guarantee, however, is frequently left unexplored. When theorists discuss the issue, they often identify property’s liberty-securing quality with the power that property confers upon its owner to exit from society into the protective cocoon of his stuff. This mechanism of “property as exit” draws its strength from an implicit assumption that people are the sorts of beings that can withdraw from social relations into the isolation of their property. But there are reasons to think that withdrawal would be very costly for most people. As a consequence, the power of property to facilitate exit may be substantially weaker than is often assumed. Moreover, scholars’ affinity for property’s isolating function has obscured the degree to which property facilitates “entrance” by tying individuals together into social groups.
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Eduardo M. PenalverJurisprudenceLaw and SocietyProperty-Personal and RealThe Supreme Court and Congress’s Power to Enforce Constitutional Rights: A Moral Anomalyhttp://lsr.nellco.org/fordham_fc/8
http://lsr.nellco.org/fordham_fc/8Wed, 22 Jun 2005 09:34:15 PDT
This article identifies a moral anomaly the Supreme Court has created in recent cases interpreting Congress’s remedial powers under the Fourteenth Amendment. It shows that the Court has unwittingly decided that the Constitution today does not authorize as much federal protection for constitutional rights and equality as it provided in the nineteenth century to protect the property rights of slave owners in their slaves. Before the Civil War, Congress enacted two statutes that enforced slave owners’ constitutionally secured property rights with civil remedies, including a civil fine and tort damages, and criminal penalties applicable to anyone who interfered with the slave owner’s constitutional right to recover fugitive slaves. Congress also created an elaborate federal enforcement structure. The United States Supreme Court upheld these statutes and Congress’s plenary power to enact them before slavery was abolished by the Thirteenth Amendment. This article shows that the framers of the Civil Rights Act of 1866 and Fourteenth Amendment used these legislative and judicial precedents to insist that Congress had to possess plenary power to enforce the fundamental rights and equality of all Americans. It also shows that the framers acted on this presumption and exercised this plenary power by enacting the Civil Rights Act of 1866, by which they enforced the civil rights of United States citizens with the civil and criminal remedies and enforcement provisions of the Fugitive Slave Acts. To ensure the constitutionality of the Civil Rights Act, the framers expressly incorporated it into the Fourteenth Amendment. However, the Supreme Court’s recent decisions hold that Congress does not possess the power to enforce the substantive rights secured by the Fourteenth Amendment that earlier Congresses exercised, with the Supreme Court’s approval, to enforce the constitutionally secured property rights of slaveholders. The Supreme Court has thereby placed itself in the morally untenable position of affirming greater constitutional protection for the property rights of slave owners before the Civil War than it is willing to affirm for the protection of the fundamental rights and equality of all Americans today.
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Robert J. KaczorowskiCivil RightsConstitutional LawLegal HistoryLegislationCongress’s Power to Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies the Framers Enactedhttp://lsr.nellco.org/fordham_fc/7
http://lsr.nellco.org/fordham_fc/7Wed, 22 Jun 2005 09:34:13 PDT
As early as 1793, Congress exercised plenary legislative power and enacted statutes that enforced the constitutionally secured property rights of slaveholders in their slaves with civil remedies, including a civil fine and tort damages, and criminal penalties and made them applicable to anyone who interfered with the slave owner’s constitutional right to recover fugitive slaves. Congress also created an elaborate federal enforcement structure. The United States Supreme Court repeatedly upheld the constitutionality of these statutes and Congress's plenary power to enact them. After the Civil War, the framers of the Fourteenth Amendment used these legislative and judicial precedents to insist that Congress possessed as much legislative power to enforce the constitutional rights of all Americans that earlier Congresses had exercised to enforce the constitutional rights of slaveholders. This article shows that, acting on this view, the framers of the Fourteenth Amendment actually exercised plenary legislative power when they enacted the Civil Rights Act of 1866, which they modeled on the antebellum legislation by incorporating their civil and criminal remedies and enforcement provisions. The article also shows that, to ensure the constitutionality of the Civil Rights Act and to protect it from being repealed by a future Congress, the framers explicitly incorporated it into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the power to define and enforce substantive constitutional rights the Rehnquist Court claims the framers intended to exclude from Congress. The framers adopted the remedies to redress violations of substantive constitutional rights the Court says the framers intended to reserve exclusively to the states. And, they expressly intended the Fourteenth Amendment to delegate to Congress the constitutional authority they had just exercised to define and enforce substantive constitutional rights, to define civil and criminal violations of constitutional rights, and to provide civil and criminal remedies to redress their violation.

This article demonstrates that the Rehnquist Court’s recent decisions interpreting Congress's Fourteenth Amendment power to enforce constitutional rights, which are based on the framers' intent, are contradicted by the framers' legislative actions to secure constitutional rights. It argues that the Rehnquist Court's understanding of Congress's power to secure constitutional rights is contradicted by the federal government's actions to enforce constitutional rights from the founding of the nation through the Civil War era, and it should be reevaluated.

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Robert J. KaczorowskiCivil RightsConstitutional LawLegal HistoryLegislationBoy Scouts & Burning Crosses: Bringing Balance to the Court’s Lopsided Approach to the Intersection of Equality and Speechhttp://lsr.nellco.org/fordham_fc/6
http://lsr.nellco.org/fordham_fc/6Sat, 27 Mar 2004 09:30:44 PST
This article identifies a previously-ignored pattern of Supreme Court decisions that privilege one competing constitutional value, either speech or equality, and subordinate the other—with little or no reasoning explaining its choice. In adjudicating such cases, including two cases decided last term, the Supreme Court has steadfastly treated these disputes as either a basic equality case or a simple speech case. This dichotomy is a problem because once the Court places a case within either a speech or equality paradigm, it is constrained by certain rigid analytical presumptions. These presumptions threaten to stunt the analysis and to deprive the Court of the flexibility necessary to reconcile the competing constitutional commitments. Consequently, a string of Supreme Court cases have privileged First Amendment interests of speech or association over equality interests. At times, the Court has not even recognized the equality dimensions of these cases in part because the equality interests were embedded in state antidiscrimination laws.

Analyzing a number of key cases including the Boy Scouts and burning cross cases, I show that, contrary to the Court’s reductive assumptions, these cases are fundamentally about speech and equality. Rather than artificially force a case into a speech or equality box, my approach would fuse speech and equality doctrine. After setting forth a general framework to speech-equality intersections, this Article reconstructs the analysis of Boy Scouts of America v. Dale and R.A.V. v. City of St. Paul to show how a more balanced approach would produce a finer-grained analysis reflective of a holistic conception of the Constitution.

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Russell K. RobinsonConstitutional LawLiberty versus Property? Cracks in the Foundations of Copyright Lawhttp://lsr.nellco.org/fordham_fc/5
http://lsr.nellco.org/fordham_fc/5Wed, 14 Jan 2004 08:48:51 PST
The purpose of this paper is to recanvass what is surely old and familiar territory about the defenses, if any, that can be made for various forms of intellectual property—and for the purposes of this conference, particularly copyright—as a matter of both natural law and utilitarian theory, broadly conceived. In dealing with this issue, it is important to note that within the Lockean tradition, the function of representative government is to protect the lives, liberties and estates of the individuals who, as subjects or citizens, are subject to the exercise of state power. There is little doubt that this formulation of the matter has exerted profound influence over the structure of American thought and constitutionalism. For instance, it is not necessary to look any further than the two constitutional commands that provide that no individual be deprived (by either state or national government) of life, liberty or property without due process of law. For these purposes there are two elements of this formulation that deserve some brief mention. First, the phrase “without due process of law” has been long, if controversially, understood to cover situations in which individuals are deprived of life, liberty or property without just compensation. In this regard, the due process clauses mirror the more specific language of the takings clause, which provides “nor shall private property be taken for public use, without just compensation.” But for our purposes, the more important claim within this clause is the ostensible parity between liberty and property in the constellation of constitutionality, and by implication, political values.
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Richard EpsteinConstitutional LawIntellectual Property LawProperty-Personal and RealUniversity Dons and Warrior Chieftains: Two Concepts of Diversityhttp://lsr.nellco.org/fordham_fc/4
http://lsr.nellco.org/fordham_fc/4Thu, 09 Oct 2003 09:44:04 PDT
In this paper, Professor Lee argues that the diversity rationale the Supreme Court articulated in Grutter v. Bollinger encompassed two different sorts of "educational benefits" arising from different conceptions of the compelling state interest in student body diversity. First, "discourse" benefits accrue from the exchange of diverse viewpoints and experiences on campus. Such benefits may have lasting effects in life beyond school. Second, society at large realizes “leadership benefits” when minority graduates of top universities assume leadership positions in nationally important non-educational institutions. From this perspective, the presence of a diverse student body at an educational unit is important not so much for the discourse on campus, but because the school serves as a “gatekeeper” to nationally sensitive leadership. The leadership-benefit concept of student-body diversity was notably advanced by an amicus brief in Grutter filed by retired military officers.

Professor Lee suggests that there is marked variation in the extent to which higher educational institutions seek to, and in fact, confer these two sorts of benefits. Accordingly, the compelling interest test as formulated in Grutter should, by its own terms, take account of this variation in mission and causation, with the logical consequence that student body diversity might not suffice as a compelling government interest in every single higher educational context. Liberal-arts colleges represent the strongest case for the discourse benefits of student body diversity. The selective military academies represent the strongest case for the gate-keeping leadership benefits of student body diversity, although graduate and professional schools in today's America, where graduate education is an increasingly important credential for leadership, can also assert a strong case for leadership benefits. The proliferation of graduate education simultaneously detracts from the claim to leadership benefits of undergraduate institutions, and to the extent that a discourse-only rationale for diversity is troubling to members of the Court and the public at large, suggests an unsteady future for race-conscious policies at four-year college and university programs.

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Thomas H. LeeConstitutional LawEducation LawExecutive Power Essentialism and Foreign Affairs: A Critique of the Vesting Clause Thesishttp://lsr.nellco.org/fordham_fc/3
http://lsr.nellco.org/fordham_fc/3Tue, 02 Sep 2003 14:41:24 PDT
The so-called “Vesting Clause” of Article II of the Constitution, which provides that “The executive Power shall be vested in a President of the United States of America,” stands in apparent contrast with the Article I Vesting Clause, which provides that “All legislative Powers herein granted shall be vested in a Congress of the United States . . . .” This textual difference, usually bolstered with historical materials, has long undergirded the claim that the Article II Vesting Clause implicitly grants the President an array of residual powers not specified in the remainder of Article II. This argument, which we call the “Vesting Clause Thesis,” was famously advanced by Alexander Hamilton in his first Pacificus essay defending President Washington’s 1793 Neutrality Proclamation. In recent years, the Vesting Clause Thesis has gained newfound popularity. White House officials were apparently prepared to deploy the argument in support of the Bush Administration’s authority to use military force against Iraq had not Congress expressly granted such authority. And Professors Saikrishna Prakash and Michael Ramsey recently defended the Vesting Clause Thesis at length in an important article in the Yale Law Journal. The Thesis also has received recent support from Professor Phillip Trimble, and qualified support from Professor H. Jefferson Powell.

This Article critiques the Vesting Clause Thesis on both textual and historical grounds. As for text, the difference in wording between the Article I and Article II Vesting Clauses can be explained on a number of other plausible grounds and need not be read as distinguishing between a limited grant of legislative powers and a plenary grant of executive power. As for history, the narrative that is offered by proponents of the Vesting Clause Thesis has two central features. First, it presents a story of continuity, whereby European political theory is carried forward, relatively unblemished, into American constitutional design and practice. Second, the narrative relies on what could be called “executive power essentialism” – the proposition that the Founders had in mind, and intended the Constitution to reflect, a conception of what is “naturally” or “essentially” within executive power. We argue that this historical narrative is wrong on both counts. Among other things, the narrative fails to take account of complexity within eighteenth century political theory, the experience of state constitutionalism before 1787, and the self-conscious rejection by the Founders of the British model of government. The narrative also understates the degree to which the constitutional Founders were functionalists, willing to deviate from pure political theory and essentialist categories in order to design an effective government.